Korolko v. Korolko
| Decision Date | 27 February 1991 |
| Docket Number | No. CA,CA |
| Citation | 803 S.W.2d 948,33 Ark.App. 194 |
| Parties | Vicki KOROLKO (Kanady) Appellant, v. Joseph KOROLKO Appellee. 90-245. |
| Court | Arkansas Court of Appeals |
Bill Walters, Greenwood, for appellant.
Ron Harrison, Michael Shinn, Fort Smith, for appellee.
Appellant, Vicki Korolko, was divorced from the appellee, Joseph Korolko, Jr., who was subsequently awarded primary custody of the parties' young child, Sarah. On July 4, 1988, appellant took the child for a scheduled ten day visit. Instead of returning the child, appellant left the state and successfully concealed her whereabouts, and that of the child, until she was located in Corpus Christi, Texas, on February 9, 1990.
Appellant was cited for contempt, and after a hearing the chancellor found her in contempt and sentenced her to six months in the Sebastian County Jail. On appeal the appellant contends that the sentence was excessive and that the trial court failed to consider any mitigating factors; that the court applied the wrong burden of proof; and that the chancellor abused his discretion in failing to recuse. We find no error and affirm.
It is true as the appellant contends that we have the authority to reduce the punishment imposed for contempt in a proper case. See, e.g., Morrow v. Roberts, 250 Ark. 822, 467 S.W.2d 393 (1971). In contending that the sentence here was excessive appellant relies on Payne v. White, 1 Ark.App. 271, 614 S.W.2d 684 (1981). In Payne the appellant picked up the child for visitation on December 26, 1979, and was to return the child to the appellee on January 2, 1980. On December 28, 1979, the appellant filed an action for change of custody in the State of California. The California court declined jurisdiction and on January 7, 1980, the child was apparently returned to the State of Arkansas forthwith. The chancellor found the appellant in contempt, fined her $1,500.00, and awarded attorneys' fees to the appellee.
There are obvious differences between that case and this one. In Payne the child was not secreted and the delay in returning the child was less than a week. Here the appellee had no knowledge of the child's whereabouts for a year and a half. The case at bar more closely resembles Smith v. Smith, 28 Ark.App. 56, 770 S.W.2d 205 (1989), also cited by the appellant. There, the appellant failed to return the parties' children after visitation. The delay was sixty-four days and we affirmed the chancellor's sentence (as modified) of the appellant to sixty-four days imprisonment.
Appellant also argues that the chancellor erred in failing to consider mitigating factors. This argument must fail because no mitigating factors whatsoever were presented by either party at the contempt hearing. While the sentence imposed in this case was certainly substantial, we cannot say from our review of the record as a whole that it was excessive under the circumstances.
Appellant also contends that the court erred in not requiring proof of appellant's contempt beyond a reasonable doubt. The argument appears to be that because the chancellor did not expressly state the applicable burden of proof, we are to presume that he was unaware of it. No authority is cited for this proposition and we can find none. Nothing in the record indicates that the chancellor was unaware of the proper burden of proof in this criminal contempt proceeding.
Finally, appellant argues that the trial court abused its discretion in failing to recuse. The sole basis for this contention is a copy of a letter from the appellant's attorney dated January 4, 1990, addressed to the chancellor. The letter was attached as an exhibit to a motion for new trial filed by the appellant after the contempt hearing. The letter states:
Dear Judge Kimbrough:
I have filed a complaint against you with the Judicial Discipline & Disability Commission. I am not aware of whether or not you have been notified of this. Until such time as this matter is resolved I would request that you withdraw as judge from any contested case in which I serve as an attorney. If you are unwilling to do so then I will withdraw as attorney in any contested case where I represent a client before you. Please advise.
With kind...
To continue reading
Request your trial
-
State v. McBride
...Twintech Indus., Inc., 558 So.2d 923, 926 (Ala.1990); State v. Rossi, 154 Ariz. 245, 741 P.2d 1223, 1225 (1987); Korolko v. Korolko, 33 Ark.App. 194, 803 S.W.2d 948, 950 (1991). To overcome this presumption, the party asserting judicial bias must show that the judge is biased or prejudiced ......
-
Bentonville Sch. Dist. v. Sitton
... ... attorney has filed a disciplinary complaint ... against the presiding judge, Korolko v. Korolko, 33 ... Ark.App. 194, 803 S.W.2d 948 (1991), or threatened other ... legal action, Smith v. State, 296 Ark. 451, 757 ... S.W.2d 554 ... ...
-
Jones v. Jones
...is discretionary with the judge himself, and his decision will not be reversed absent an abuse of that discretion. Korolko v. Korolko, 33 Ark.App. 194, 803 S.W.2d 948 (1991). Although we agree that the chancery judge in this case erroneously issued the emergency ex parte order, we do not fi......
-
Duty v. State
...not be reversed absent a showing of an abuse of discretion. Woods v. State, 278 Ark. 271, 644 S.W.2d 937 (1983); Korolko v. Korolko, 33 Ark.App. 194, 803 S.W.2d 948 (1991); Chancellor v. State, 14 Ark.App. 64, 684 S.W.2d 831 (1985). Further, judges are presumed to be impartial and the party......